On Wednesday afternoon U.S. District Chief Judge Vaughn Walker struck down Proposition 8 and reopened the door to same sex marriage in California. The case will now be appealed to the 9th Circuit Court and likely go from there to the U.S. Supreme Court.
Proposition 8 was a controversial ballot initiative to ban gay marriage which passed last year after a high pressure media campaign which pitted hardcore religious conservatives and the Mormon church against civil libertarians and Hollywood activists. The result was to override a prior court ruling which had led to a brief period of legalization for gay marriage under which 18,000 couples were married. The status of those couples and of future gay marriages in California remains unresolved until judge Walker decides whether or not to put his ruling on hold pending appeal.
Walker’s ruling depends heavily on the Constitution and focuses on the issue of equal protection under the law, rejecting the idea that a majority vote can take rights away from minority groups. The ruling is a very positive step forward for liberty in California and a triumph for the rule of law over the rule of the mob.
Perhaps the most interesting part of this story is that despite the fact that many conservative groups backed Proposition 8, in many ways this ruling is a direct product of a strong libertarian streak in the Republican party which is only getting stronger going into November’s election.
Ronald Reagan who once commented that he believed that the “heart of conservatism is libertarianism” essentially planted a liberty bomb decades ago when he appointed judge Walker to his first position on the bench. Walker was then and remains an avowed constitutional libertarian and one of only three openly gay federal court judges.
Reagan certainly knew who Walker was politically and personally when he made that appointment and it’s an indication of what direction he wanted the party to go in. No influence lasts longer than a court appointment, so in making appointments like Walker Reagan left an important libertarian legacy which outlived him.
Other Republicans also played leading up to this ruling. It was President George H. W. Bush who elevated Walker to his current position on the federal bench. One of the two lead attorneys suing to strike down Proposition 8 was Theodore Olson who was a Reagan appointee as Assistant Attorney General and was Solicitor General in the George W. Bush administration. And Republican Governor Arnold Schwarzenegger was involved in the decision not to have state attorneys argue on behalf of the proposition.
Despite the posturing of the religious right and the reverence in which Ronald Reagan is held throughout the party, Republicans may have to face up to the fact that it was Republican leaders both currently in office and going back decades whose practice of covertly embracing libertarianism has lead directly to Proposition 8 being struck down.
Those pro-liberty values are embodied in the Constitution and were the founding principles of the Republican party. They are also the key to revitalizing the party by taking it back to the Reagan era and beyond, when principle mattered more than political power and Republicanism stood for less government and more liberty.
As this court ruling has shown us, it’s time for Republicans to come out of the closet, embrace Reagan, embrace his legacy and embrace the most fundamental principle of liberty — that all men are created equal and should be treated equally under the law.